TITLE:  G.E.G. Sugar Blues & Noe's Colors, B-284117, February 22, 2000
BNUMBER:  B-284117
DATE:  February 22, 2000
G.E.G. Sugar Blues & Noe's Colors, B-284117, February 22, 2000


Matter of: G.E.G. Sugar Blues & Noe's Colors

File: B-284117

Date: February 22, 2000

Elvira Grajales for the protester.

Catherine Morris, Esq., Defense Logistics Agency, for the agency.

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.


Where request for quotations did not contain a provision advising that
quotations must be submitted by a certain date to be considered, the
contracting agency should have considered the protester's low quotation
received prior to award since no substantial activity had transpired toward
award and other offerors would not have been prejudiced.


G.E.G. Sugar Blues & Noe's Colors (Sugar Blues) protests the issuance of a
purchase order for women's shirts to Clemson University Clemson Apparel
Research under request for quotations (RFQ) No. SPO100-99-Q-4249, issued by
the Defense Logistics Agency, Defense Supply Center Philadelphia (DSCP). The
agency refused to consider Sugar Blues' quotation, which was lower in price
than Clemson's, because it was unable to confirm that the quotation had been
received prior to the date specified in the RFQ. Sugar Blues contends that
its quotation was submitted prior to the specified date and thus should have
been considered.

We sustain the protest.

The RFQ, which was issued on September 2, 1999, requested quotations for
4,480 short-sleeved women's shirts. [1] Quotations were due by close of
business on September 24.

Seven quotations were received. Sugar Blues' price of $49,056 was lowest of
the seven; Clemson's price of $50,848 was second low. The contract
specialist responsible for the procurement could not confirm that Sugar
Blues' quotation had been received prior to close of business on September
24; as a consequence, he determined that the quotation was late and should
not be considered. In this regard, the agency reports that the contract
specialist, who had scheduled leave, left the agency at approximately noon
on Friday, September 24, without making arrangements to have the two
facsimile machines designated for receipt of quotations checked during the
remainder of the afternoon. When the contract specialist returned to work on
Monday, September 27, he found a faxed quotation from Sugar Blues. Since the
fax machine on which the quotation was received had not been set to print
the time and date of receipt on incoming documents, and the machine had not
been checked between noon on Friday and Monday morning, the contract
specialist was unable to determine when the fax had arrived. [2] The
contract specialist did note, however, that the following legend, generated
by the sending fax machine, had been printed across the top of the
quotation: "09/25/99 01:55 FAX." Based on this information, the contracting
specialist determined that Sugar Blues' quotation had been received after
the specified due date and should not be considered for award. On November
5, the agency issued a purchase order to Clemson.

The protester contends that its quotation should have been considered
because it was in fact transmitted on September 24. [3] As explained below,
we conclude that the quotation should have been considered regardless of
whether it was transmitted on September 24 or 25; accordingly, we sustain
Sugar Blues' protest.

The RFQ here provided that "[o]ffers are requested by COB Friday, September
24, 1999." Language requesting quotations by a certain date cannot be
construed as establishing a firm closing date for the receipt of quotations
absent a provision expressly providing that quotations must be received by
that date to be considered. John Blood, B-274624, Dec. 19, 1996, 96-2 CPD
para. 233 at 2; Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86-2
CPD para. 16 at 3. Here, the language in the RFQ requesting quotations by
September 24 does not meet that standard. The agency therefore should have
considered any quotations received prior to source selection if no
substantial activity had transpired in evaluating quotations and other
vendors would not be prejudiced. Instruments & Controls Serv. Co., supra.
Failure to do so would be inconsistent with the statutory provision
authorizing simplified procedures for small purchases, 10 U.S.C.
sect. 2304(g)(1)(A) (Supp. IV 1998), which requires that agencies obtain
competition to the maximum extent practicable. 10 U.S.C. sect. 2304(g)(3)
(1994); Instruments & Controls Serv. Co., supra. Since the RFQ here
contained no late quotations clause; absolutely no activity with regard to
the evaluation of quotations had transpired prior to the receipt of Sugar
Blues' quotation; and there is no indication that any other vendor would be
prejudiced, the quotation should have been considered.

We recognize that the agency posted on the CBDnet on September 15, 1999, an
amendment to the initial Commerce Business Daily (CBD) synopsis of the
acquisition, that the amendment provided that "[a]ll faxed and mailed quotes
must be received by this office by Close of Business on September 24, 1999,"
and that this language could be viewed as imposing a firm closing date. The
CBD amendment, however, did not amend the RFQ, but only the original CBD
synopsis, which itself was not a solicitation. Where an agency has issued a
hard-copy solicitation, the solicitation cannot be amended through a CBD
notice, but only through issuance of an amendment to everyone to whom the
solicitation was furnished. [4] FAR sect. 14.208(a). This was not done here, nor
is there evidence in the record that the protester otherwise had actual
notice of the imposition of a firm closing date. Accordingly, we need not
decide whether, had it been incorporated as an amendment into the RFQ, the
CBD language requiring the submission of quotations by close of business on
September 24 could have served as a basis to reject a late quotation.

We recommend that the agency cancel the purchase order issued to Clemson and
issue a purchase order to Sugar Blues, if its quotation is otherwise
acceptable and the company is qualified for award. We also recommend that
the protester be reimbursed for the costs it incurred in filing and pursuing
its protest. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1) (1999). In
accordance with section 21.8(f)(1) of our Regulations, Sugar Blues'
certified claims for such costs, detailing the time expended and the costs
incurred, must be submitted directly to the agency within 60 days after
receipt of the decision.

The protest is sustained.

Comptroller General
of the United States


1. Although the RFQ bears the date September 1, the agency reports that it
was issued on September 2.

2. Although, according to the agency, the fax machine in question keeps a
"‘rolling' memory of the last 32 ‘fax transactions' (faxes
either sent or received)" and automatically produces a journal every 32
transactions, Agency Letter to GAO 1 (Jan. 18, 2000), the contracting
specialist was apparently unaware that the machine had this capability and
did not attempt to obtain a copy of the relevant journal. It is impossible
to obtain a copy now since the agency does not retain the journal printouts
in its records.

3. Sugar Blues offers as evidence of this a copy of the telephone bill for
its fax line, which shows that a call was placed to the DSCP fax number on
September 24 at 1:59 p.m. The bill also shows that no faxes were transmitted
from Sugar Blues' number on September 25.

4. We note that agencies are permitted in certain circumstances to issue a
CBD notice that serves as a combined synopsis and solicitation. See Federal
Acquisition Regulation sect. 13.105(b). Where that is the case, we believe that
amendment through another CBD notice would be adequate.